Florida executes killer after 31 years on death row
By Mitch Stacy, The Associated Press
February 15, 2012
STARKE — A man convicted of raping a 29-year-old mother and dragging her
into Tampa Bay's surf to drown more than three decades ago was executed
by lethal injection Wednesday at Florida State Prison.
Twice-convicted murderer Robert Brian Waterhouse, 65, was pronounced
dead at 8:22 p.m., 11 minutes after the execution began. He had been on
death row for more than 31 years — longer than any inmate previously
executed in Florida. Gov. Rick Scott signed his death warrant last
month. His execution was delayed two hours as the U.S. Supreme Court
considered a last-minute appeal before rejecting it. The court had
rejected a similar appeal earlier in the day.
"You are about to witness the execution of a wrongly convicted and
innocent man," Waterhouse said. He blamed his conviction on corrupt
prosecutors, a prejudiced judge and a rubber-stamp appellate system.
"The state broke its own law in destroying DNA evidence in my case so I
could not prove my innocence. To my wife and family, I want to say I
love you all and that's it."
Waterhouse was convicted in 1980 of murdering Deborah Kammerer of St.
Petersburg, whose body was found in the tidal flats of Tampa Bay. She'd
been beaten, raped and dragged into the bay, where she drowned.
Unable to identify her immediately, police turned to the public for
help. Neighbors identified Kammerer's body, and an anonymous tipster led
police to Waterhouse. He had pleaded guilty to second-degree murder for
killing a 77-year-old Long Island woman during a 1966 burglary. He was
sentenced to life but was paroled after eight years.
A bartender had seen Kammerer and Waterhouse leave a St. Petersburg bar
together. Blood, hair and fibers in Waterhouse's car were linked to the
victim. Waterhouse admitted having sex with Kammerer but denied killing
Then-Gov. Bob Graham signed a death warrant for Waterhouse in 1985, but
his execution was delayed by an appeal that eventually got him a new
sentencing hearing. That hearing in 1990 ended like the first, with a
jury recommending execution by a 12-0 vote and a judge sentencing him to
Last week, the Florida Supreme Court had rejected arguments that
Waterhouse should be spared because of testimony from a newly discovered
witness and the destruction of physical evidence that made it impossible
to perform DNA testing that could exonerate him. Justices concluded the
new testimony was unreliable and wouldn't have been enough to acquit
Waterhouse if he were to be retried.
Waterhouse visited for two hours Wednesday morning with his wife Fran.
They met and married while he was behind bars. He also ate a final meal
of two pork chop cutlets, two eggs sunny side up, two pieces of toast, a
slice of cherry pie, a pint of butter pecan ice cream, a pint of orange
juice and a pint of milk. He declined to meet with a minister or
Outside the prison Wednesday, more than 40 people protested the
execution in a small, roped-off area across the street. Roman Catholic
priest Father Phil Egitto of Daytona Beach brought more than half the
group by bus.
"Violence begets violence. This is basically premeditated murder,"
Egitto said. "Killing is wrong."
The group sang songs and held up and hung signs, including some that
said, "Murder is a sign. The death penalty is legal murder" and "We
remember the victims but not with more killing" and "Though shalt not
Only two people stood in a similar area for death penalty supporters, Jo
Ellen Isbell, 49, and her fiancé, Jay Golding, 41. They drove two hours
from Citrus County.
"I read a lot about him and I just wanted to support (Kammerer)," Isbell
said, saying she also drove up for the execution of Oba Chandler in
November, the only other time she's made the trip to Starke for an
execution. "My heart breaks for the family and I am very much for what's
Killer rapist put to death after last meal of pork chops, eggs and
ice cream... and three hours alone with wife he married while in prison
By Reuters Reporter
16th February 2012
Florida has executed a 65-year-old man who spent more than three decades
on death row for the gruesome murder of a woman he met at a bar.
Robert Waterhouse was put to death by lethal injection on Wednesday at
the Florida State Prison in Raiford, the fourth inmate executed in the
United States this year.
He was pronounced dead at 8:22pm local time Wednesday, said Department
of Corrections spokeswoman Jo Ellyn Rackleff.
Waterhouse's last meal consisted of two pork chops, two eggs - sunnyside
up - two slices of toast, a slice of cherry pie, a pint of butter pecan
ice cream, a pint of orange juice and a pint of milk.
He spent three hours with his wife, Fran Waterhouse, in the morning, Mr
Waterhouse was sentenced to die for the murder in January 1980 of
Deborah Kammerer, a 29-year-old St Petersburg woman who encountered
Waterhouse at a bar in the Tampa Bay area.
Miss Kammerer's body was discovered the following morning in the
low-tide mud flats of Tampa Bay. An autopsy found that she had been
raped, beaten and drowned.
Police arrested Waterhouse, a plasterer and drywall installer, a week
after Miss Kammerer's body was found. Investigators found blood samples,
hair and other fibres that placed her in his car, records show.
At the time of the murder, Waterhouse was on parole for the 1966 rape
and murder of a 77-year-old woman in New York.
He served eight years in prison before his release in that case.
Waterhouse was convicted and sentenced to death in September 1980. His
original death sentence was thrown out by the Florida Supreme Court in
1988 after his appellate attorney argued that the trial counsel erred by
not presenting jurors with critical mitigating information, court
A second jury reaffirmed the death sentence in 1990.
Waterhouse's last-minute appeals were denied on Wednesday.
Waterhouse was the 72nd inmate put to death in Florida since the U.S.
Supreme Court threw out federal and state death penalty statutes in
1972, forcing states to revamp their laws and methods. Florida resumed
executions in 1979.
His was the fourth execution in the United States so far this year,
according to the Death Penalty Information Center. There were 43
executions in the country in 2011.
Robert Brian Waterhouse
Sixth Judicial Circuit, Pinellas
County, Case #80-192
Sentencing Judge: The Honorable
Resentencing Judge: The
Honorable Robert Beach
Attorneys, Trial: Paul Scherer &
John Thor White – Assistant Public Defenders
Attorney, Resentencing: Larry
Attorney, Direct Appeal: Philip
J. Padovano, Esq.
Attorney, Direct Appeal,
Resentencing: Steven Bright, Esq. & Clive Stafford Smith, Esq.
Attorney, Collateral Appeals:
Robert Norgard, Esq. - Private
Date of Offense: 01/02/80
Date of Sentence: 09/03/80
Date of Resentence: 04/11/90
Circumstances of Offense:
On the morning of 01/03/80, St.
Petersburg police responded to a call that the nude body of an
unidentified woman had been found in the mud flats of Tampa Bay.
was evidence that the woman had been dragged from a grassy area on shore
into the water at high tide. An examination of the body revealed severe
lacerations on the head and rectum, and bruising on the throat. Medical
examiners determined that drowning was ultimately the cause of death.
Additionally, there was an adequate amount of acid phosphotase found in
the woman’s rectum to suggest the presence of semen. The lacerations in
her rectum were determined to be cause by the insertion of a large
Unable to identify the body of
the woman, St. Petersburg police turned to the public for help. An
anonymous caller gave police of the license plate number of Robert
Waterhouse and suggested that they should investigate him.
The body of
the woman was identified as Deborah Kammerer by her neighbors, Yohan
Wenz and Carol Byers. Wenz and Byers reported that on the evening of
01/02/80 they accompanied Kammerer to the ABC Lounge. They later left
the lounge, while Kammerer stayed behind. Kyoe Ginn, a bartender at the
ABC Lounge, testified that he saw Kammerer talking to Robert Waterhouse
and that the two left the lounge together around 1:00 a.m.
On the evening of 01/07/80,
Robert Waterhouse was asked to go to the police station voluntarily for
questioning. Waterhouse told the investigators that he did not know the
victim and did not leave the bar with a woman. Waterhouse was permitted
to leave the police station, but his car was impounded with a search
A search of his car revealed bloodstains and a luminol test
showed that more blood had been wiped up. The blood found in the car
was consistent with the blood type of Kammerer and inconsistent with the
blood type of Waterhouse. Additionally, investigators found strands of
hair that were similar in characteristic to the samples taken from
Kammerer. There were also fibers in the car that matched fibers from
the Kammerer’s coat and pants.
Waterhouse was arrested on
01/09/80 for the murder of Deborah Kammerer. During a subsequent
interrogation, Waterhouse was shown a picture of Kammerer and admitted
that he did, in fact, know her.
1966, Robert Waterhouse was indicted on charges of First-Degree Murder
and Burglary in New York. He was charged with breaking into a home and
killing 77-year-old Ella Carter. Waterhouse pled guilty to Second-Degree Murder
and was sentenced to life imprisonment. He was on lifetime parole at
the time of the Kammerer murder.
01/31/80 Defendant indicted on the following:
Count I: First-Degree
09/02/80 The jury found the defendant guilty of First-Degree
advisory sentencing, the jury, by a 12 to 0 majority, voted for the
death penalty for the murder of Deborah Kammerer.
09/03/80 The defendant was sentenced as follows:
Count I: First-Degree
Murder - Death
Florida Supreme Court granted Waterhouse’s Petition for Writ of Habeas
Corpus and remanded for a new penalty phase consistent with the dictates
advisory sentencing, the new jury, by a 12 to 0 majority, voted for the
imposition of the death penalty.
defendant was resentenced as follows:
Count I: First-Degree
Murder - Death
On 10/08/80, Waterhouse filed
his Direct Appeal in the Florida Supreme Court. Waterhouse claimed that
the trial court erred when it denied his motion to suppress statements
he made on 01/07/80. Waterhouse argued that the statements were the
result of an illegal arrest; however, it was noted that Waterhouse was
not under arrest at that time and went to the police station voluntarily
for questioning. Waterhouse also argued the admission of his statements
made to police on 01/09/80 and 01/10/80. He contended that the
statements were inadmissible because they were obtained after his
request for an attorney. Additionally, he argued that the officers
violated his Fifth Amendment right by questioning him after he had
invoked his right to consult an attorney. Waterhouse also claimed that
the trial court erred in admitting irrelevant testimony of a jailhouse
cellmate and in its consideration and application of mitigating
circumstances. The Florida Supreme Court found no merit in Waterhouse’s
claims and affirmed his conviction and sentence of death on 02/17/83.
On 07/29/83, Waterhouse filed a
Petition for Writ of Certiorari in the United States Supreme Court,
which was subsequently denied on 11/07/83.
On 02/22/85, Governor Bob Graham
signed a death warrant for Waterhouse and set the execution date for
03/19/85. On 03/15/85, Waterhouse filed an Application for Stay of
Execution in the State Circuit Court, which was granted on 03/15/85,
pending the resolution of Waterhouse’s 3.850 Motion. The State
responded by filing a Motion to Vacate the Stay of Execution. That was
denied on 03/18/85.
Waterhouse filed his 3.850
Motion on 04/22/85, and it was denied on 07/09/86. He then filed an
appeal of that denial in the Florida Supreme Court on 10/31/86. In a
consolidated opinion with Waterhouse’s Petition for Writ of Habeas
Corpus, which was filed on 04/30/87, the Florida Supreme Court affirmed
the denial of the 3.850 Motion, but granted the Habeas relief on
02/11/88. The Florida Supreme Court remanded Waterhouse’s case for a
new penalty phase consistent with the dictates of Lockett and
Hitchcock, which concern the consideration of mitigating evidence.
The State then filed a Petition
for Writ of Certiorari in the United States Supreme Court, which was
subsequently denied on 10/03/88.
Waterhouse was again sentenced
to death on 04/11/90. He then filed a Direct Appeal in the Florida
Supreme Court on 06/08/90. In that appeal, he argued that he was denied
the right to counsel by his lawyer’s refusal to make a closing argument
at the resentencing hearing. Attorney Larry Hoffman was prepared to
present evidence in mitigation in his closing argument; however,
Waterhouse wanted him to present a lingering doubt defense instead.
Hoffman felt to present this defense would be unethical and protected
the record to reflect that it was Waterhouse who wanted to present such
a defense. Waterhouse made many complaints about his attorney, but
never made it clear if he wished to represent himself. The Florida
Supreme Court noted that Waterhouse was not denied the right to counsel,
but rather, “rejected the choice of a closing argument by counsel
confined to the appropriate issues.” Waterhouse also claimed that the
trial court erred in refusing to answer two questions raised by the jury
and in allowing the State to improperly introduce evidence regarding his
prior Second-Degree Murder conviction in New York. Waterhouse further
contended that the trial court erred in its application of the
“committed for the purpose of avoiding arrest” and “cold, calculated,
and premeditated” aggravating factors. The Florida Supreme Court
agreed; however, they noted that even by eliminating these two
aggravating factors, the presence of other aggravators and the lack of
evidence in mitigation would have still resulted in a sentence of
death. The Florida Supreme Court affirmed the sentence of death on
After filing his Direct Appeal,
but before its disposition, Waterhouse filed a Petition for Writ of
Habeas Corpus and a Motion for Extraordinary Relief in the Florida
Supreme Court. The Habeas and the Motion for Relief were denied on
Waterhouse next filed a Petition
for Writ of Certiorari in the United States Supreme Court, which was
denied on 11/02/92.
Waterhouse again filed a 3.850
Motion in the State Circuit Court. Following the denial of that motion,
Waterhouse filed a 3.850 Appeal in the Florida Supreme Court. The court
found no merit in the claims raised by Waterhouse and affirmed the
denial of his 3.850 Motion on 05/31/01.
Next, Waterhouse filed a
Petition for Writ of Habeas Corpus in the Florida Supreme Court that was
denied on 11/21/02.
On 09/30/03, Waterhouse filed a
3.853 Motion for DNA Testing in the State Circuit Court. On 07/06/05,
the court issued an order denying Waterhouse’s Motion for Post
Conviction DNA Testing.
On 06/03/04, the State filed a
Petition Seeking Review of the Non-Final Order in the 3.853
Proceedings. On 11/13/04, the petition was dismissed without prejudice.
Waterhouse filed a 3.853 Appeal in the Florida Supreme
Court on 08/10/05. The appeal is currently pending.
Supreme Court of Florida
Waterhouse v. State
Robert Brian WATERHOUSE, Appellant/Cross–Appellee,
STATE of Florida, Appellee/Cross–Appellant.
February 08, 2012
Robert A. Norgard and Andrea M.
Norgard of Norgard and Norgard, Bartow, Florida, for
Appellant.Pamela Jo Bondi, Attorney General, Tallahassee, Florida,
Candance M. Sabella, Bureau Chief, and Stephen D. Ake, Assistant
Attorneys General, Tampa, Florida, for Appellee.
Robert Brian Waterhouse, a prisoner under sentence of
death, appeals the denial of his successive motion for postconviction
relief filed pursuant to Florida Rule of Criminal Procedure 3.851. We
have jurisdiction. See art. V, § 3(b)(1), Fla. Const. On January 4,
2012, the Governor signed a death warrant for Waterhouse, with the
execution scheduled for February 15, 2012. Waterhouse subsequently
sought postconviction relief in the circuit court, presenting two
claims. The circuit court summarily denied relief on one claim and
ordered an evidentiary hearing on the other. Following an evidentiary
hearing, the circuit court denied relief on Waterhouse's second claim.
For the reasons discussed below, we now affirm the circuit court's
orders and deny Waterhouse's request for a stay of execution.
FACTS AND PROCEDURAL HISTORY
On September 2, 1980, Robert Waterhouse was convicted
of the first-degree murder of Deborah Kammerer. The facts of the murder
were stated in the opinion of this Court affirming the judgment and
sentence of death in the initial direct appeal:
On the morning of January 3, 1980, the St. Petersburg
police responded to the call of a citizen who had discovered the dead
body of a woman lying face down in the mud flats at low tide on the
shore of Tampa Bay. An examination of the body revealed severe
lacerations on the head and bruises around the throat. Examination of
the body also revealed—and this fact is recited not for its
sensationalism but because it became relevant in the course of the
police investigation—that a blood-soaked tampon had been stuffed in the
victim's mouth. The victim's wounds were such that they were probably
made with a hard instrument such as a steel tire changing tool.
Examination of the body also revealed lacerations of the rectum. The
cause of death was determined to have been drowning, and there was
evidence to indicate that the body had been dragged from a grassy area
on the shore into the water at high tide. The body when discovered was
completely unclothed. Several items of clothing were gathered from along
the shore at the scene.
The body showed evidence of thirty lacerations and
thirty-six bruises. Hemorrhaging indicated the victim was alive, and
defense wounds indicated she was conscious, at the time these
lacerations and bruises were inflicted. Acid phosphotase was found in
the victim's rectum in sufficient amount to strongly indicate the
presence of semen there. Also, the lacerations in this area indicated
that the victim had been battered by the insertion of a large object.
The medical examiner was also able to determine that at the time of the
murder the victim was having her menstrual period.
After several days of investigation the police were
unable to identify the victim, so they announced the situation to the
public. They then received an anonymous telephone call simply informing
them of appellant's automobile tag number and advising them to
The police also learned the identity of the victim
from two of her neighbors. These two acquaintances, Yohan Wenz and Carol
Byers, testified at trial that they went to the ABC lounge with the
victim on Wednesday night, January 2, 1980. They testified that they
later left the lounge and that Ms. Kammerer remained there at that time.
Kyoe Ginn, who was working there as a bartender that night, testified
that the victim came into the bar with a man and a woman, that they
later left, that Ms. Kammerer then began talking with appellant (who was
known to the witness) and that at about 1:00 a.m. appellant and Kammerer
left the bar together.
On the evening of January 7, 1980, police officers
asked appellant to voluntarily go with them to police headquarters for
an interview. At this time he said that he did not know any girl named
Debbie and that he went to the ABC lounge on January 2 but did not leave
with a woman. After this interview appellant was allowed to leave but
his car was impounded for searching pursuant to warrant. The automobile
was searched on January 8 and appellant was arrested on January 9.
Detectives Murry and Hitchcox arrested appellant. In
the car on the way to the police station, after advising appellant of
his rights, Hitchcox asked him, “We were right the other night, weren't
we, when we talked to you about being involved in this case?” Appellant
responded simply, “Might.” Shown a picture of Deborah Kammerer,
appellant this time admitted that he did in fact know her.
On the afternoon of January 9, the detectives again
interviewed appellant. Detective Murry testified concerning this
interview. She said that appellant became emotionally upset and said
repeatedly that his life was over, that he was going to the electric
chair. He said that he wanted to talk to his interviewers as people and
not as police officers. He then said that he had some personal problems
with alcohol, sex, and violence.
The two detectives interrogated appellant again on
January 10. Again appellant said he wanted to talk to them as people
rather than as police officers. Detective Murry testified that appellant
again indicated that he experienced a problem involving sexual activity.
He said that when he drinks a lot, it is like something snaps and he
then finds himself doing things that he knows are terrible and bad, and
that he cannot control his behavior on such occasions. Appellant also
told the officers that when he wanted to engage in sexual activity with
a woman but learned that she was having her menstrual period, he would
become frustrated and angry and that this is what had happened the
previous Wednesday night [i.e ., the night of the murder]. He also said
that he had had a lot to drink on Wednesday night.
Inspection of the interior of appellant's car
revealed the presence of visible blood stains, and a luminol test
revealed that a large quantity of blood had been in the car but had been
wiped up. Analysis of the blood in the car and comparison with known
blood samples of appellant and the victim revealed that the blood in
appellant's car could have come from the victim but was not appellant's
A forensic blood analyst testified that it is
possible through analysis of blood stains on certain surfaces to make
estimates concerning the direction and velocity of motion of the blood
making the stains. This witness concluded from her analysis that the
blood in appellant's car was deposited in the course of a violent
A forensic hair analyst testified that hairs found in
appellant's car were consistent in their characteristics with known hair
samples from the victim.
A forensic fiber analyst testified that fibers found
in the debris adhering to the victim's coat were similar to fibers from
the fabric of the seat cover in appellant's car. Also, fibers were found
in the car that had the same characteristics as fibers from the victim's
coat and pants.
Appellant was employed as a plaster and drywall
worker. His foreman testified at trial that on the morning of January 3,
appellant arrived at work asking for the day off. He appeared to have a
hangover and said he was feeling rough. The witness said that at this
time appellant had scratches on his face. The witness also said that
appellant had told him that he liked anal intercourse and liked being
with women who allowed themselves to be hit and slapped.
Waterhouse v. State, 429 So.2d 301, 302–04 (Fla.1983)
(Waterhouse I ), cert. denied, 464 U.S. 977 (1983). The jury
recommended, and the trial court imposed, a sentence of death. See id.
at 302. On direct appeal, this Court affirmed the conviction and
sentence. See id. The Court also affirmed the denial of Waterhouse's
initial rule 3.850 motion for postconviction relief. See Waterhouse v.
State, 522 So.2d 341, 342 (Fla.1988) (Waterhouse II ). However, the
Court granted Waterhouse's petition for writ of habeas corpus and
vacated his death sentence because the trial court failed to instruct
the jury to consider evidence of nonstatutory mitigating circumstances
in violation of Hitchcock v. Dugger, 481 U.S. 393 (1987), and Lockett v.
Ohio, 438 U.S. 586 (1978). See Waterhouse II, 522 So.2d at 344.
After a resentencing proceeding, a unanimous jury
again recommended a sentence of death, and the trial court followed the
jury's recommendation. On appeal, this Court affirmed the sentence. See
Waterhouse v. State, 596 So.2d 1008, 1018 (Fla.) (Waterhouse III ),
cert. denied, 506 U.S. 957 (1992). The Court subsequently affirmed an
order that summarily denied Waterhouse relief under Florida Rule of
Criminal Procedure 3.850, see Waterhouse v. State, 792 So.2d 1176, 1196
(Fla.2001) (Waterhouse IV ), and denied a petition for writ of habeas
corpus filed by Waterhouse, see Waterhouse v. Moore, 838 So.2d 480, 484
(Fla.2002) (Waterhouse V ). Finally, in October 2006, this Court
affirmed an order that denied a motion for postconviction DNA testing
filed by Waterhouse pursuant to Florida Rule of Criminal Procedure
3.853. See Waterhouse v. State, 942 So.2d 414 (Fla.2006) (table
On January 4, 2012, the Governor
signed a death warrant for Waterhouse, with the execution scheduled for
February 15, 2012. Following the signing of the death warrant,
Waterhouse filed a successive motion for postconviction relief,
asserting two claims.
1. Execution of an inmate should be constitutionally
prohibited when a person under sentence of death who has consistently
maintained his innocence, and who in good faith has filed a motion for
postconviction DNA testing to establish his innocence, is precluded from
obtaining testing due to the destruction of evidence through the
negligence of a government agency in violation of state law.
2. Waterhouse was denied an adversarial testing
during his capital trial due to the failure of the State to disclose a
material witness under Brady v. Maryland, 373 U.S. 83 (1963), and the
presentation of false testimony under Giglio v. United States, 405 U.S.
150 (1972), in light of the affidavit of Leglio Sotolongo which, in the
alternative, may also be construed as newly discovered evidence.
Waterhouse also sought a stay of execution.
With regard to the first claim, Waterhouse stated
that in the context of a prior rule 3.853 motion for postconviction DNA
testing, it was determined that the Office of the Clerk of the Sixth
Judicial Circuit of Florida had destroyed “all evidence in this case” in
violation of section 43.195, Florida Statutes (1987).1
Waterhouse contended that as a result of this negligent destruction, he
is precluded from establishing his innocence of the murder through DNA
testing. Waterhouse asserted that the negligent destruction of
potentially exculpatory evidence by a state agency should operate as a
bar to execution under the fundamental rights guaranteed by the Florida
and United States Constitutions. In support of this assertion,
Waterhouse referenced two states—North Carolina and Virginia—where
executions allegedly were precluded due to the destruction of evidence.
Waterhouse claimed that this issue is different from that which he
previously presented in his rule 3.853 motion:
The issue of retroactivity is inapplicable as this
presents a question of first impression and seeks the recognition of a
fundamental constitutional right for the first time. The claim has not
been previously raised because until the warrant was signed the issue
was not ripe for review.
Waterhouse's second claim arises from an affidavit
signed by Leglio Sotolongo on January 9, 2012. According to the
affidavit, Sotolongo was employed as a doorman at the ABC lounge. He was
at the lounge on the night of the murder, but cannot remember if he was
actually working that night. Sotolongo averred that he remembers that
night particularly because Waterhouse repaid money that he had
previously borrowed from Sotolongo. Sotolongo states that Waterhouse
arrived at the ABC lounge at approximately 7–8 p.m. After the murder,
Sotolongo informed the police that he saw Waterhouse leave with two men.
Sotolongo states, “I cannot be precise regarding the time, but it was
before closing time, which was 2:00 A .M.” He also stated that, from her
position at the center bar, bartender and State witness Kyoe Ginn would
not have been able to see the exit door to the lounge. According to
Sotolongo, although he informed Detective Gary Hitchcox that he saw
Waterhouse leave the lounge with two men, the police report prepared by
Hitchcox instead stated that Sotolongo did not “remember when Mr.
Waterhouse left the lounge.” Sotolongo states that this portion of
Hitchcox's police report “is false.” Sotolongo also states that after
his interview with Hitchcox, Sotolongo and Leon Vasquez, a bouncer who
was working at the ABC lounge on the night of the murder, encountered
the detective at Murphy's Bar. According to the affidavit:
Detective Hitchcox came up to us and got into our
faces. The Detective accused us of trying to protect a murderer. The
situation was such that there was almost a physical altercation, but
there wasn't, and we left the bar.
Waterhouse's motion sets forth Sotolongo's address
and phone number, and states that had Sotolongo been contacted, he would
have been available to testify at the time of trial and the
Waterhouse argued that, in failing to disclose
Sotolongo's exculpatory statement, the State committed a Brady
violation. Waterhouse asserted that Sotolongo's testimony would have not
only impeached that of bartender Ginn, who testified that she saw
Waterhouse leave with the victim, but would have also corroborated the
testimony of defense witness Leon Vasquez, who testified that he saw
Waterhouse leave the lounge with two men. Waterhouse next argued that,
by knowingly permitting bartender Ginn to falsely testify that she saw
the victim and Waterhouse leave together, the State committed a Giglio
violation. Finally, and in the alternative, Waterhouse contended that
the affidavit of Sotolongo constituted newly discovered evidence, which
could not have been discovered previously due to the false statement in
Detective Hitchcox's police report. According to Waterhouse, impeachment
of bartender Ginn was critical to Waterhouse's defense and, if Sotolongo
had been allowed to testify, the outcome of the trial would have been
Waterhouse attached to his motion nearly identical
affidavits of guilt-phase defense counsel. The trial level attorneys
averred that they relied upon Detective Hitchcox's report being an
accurate and truthful statement from Sotolongo. Because they relied upon
the veracity of the report, “apparently no one from the defense team
contacted or spoke with Mr. Sotolongo prior to trial.” Both attorneys
stated that, had they been aware of Sotolongo's statement, they would
have presented him as a witness “for the purpose of impeaching Ms. Ginn
and to corroborate other defense testimony [i.e., that of Leon
On January 13, 2012, the postconviction court held a
rule 3.851 case management conference on Waterhouse's successive motion.
After that hearing, the court issued an order that summarily denied the
destruction of evidence claim as improperly pled, procedurally barred,
successive, and untimely. The postconviction court first held that,
since Waterhouse is seeking the recognition of a new fundamental right,
rather than retroactive application of an established fundamental right,
this claim is not properly pled under rule 3.851(d)(2)(B). The court
next found that the issue presented in this first claim “[has] already
been litigated and considered in the courts through Waterhouse's prior
motion for postconviction DNA testing and subsequent appeal. Therefore,
the current iteration of the claim is barred from review.” The
postconviction court also concluded that this claim is not timely
because even though Waterhouse chose not to raise this claim until the
warrant was signed, “nothing prevented [him] from addressing this matter
years earlier.” Lastly, with regard to Waterhouse's reliance on recent
actions in North Carolina and Virginia, the postconviction court found
that “[t]he decisions of the executive branches in other states have no
legal bearing upon this court.”
The postconviction court granted an evidentiary
hearing on the second claim, which was based upon the affidavit of
Leglio Sotolongo. In ordering an evidentiary hearing, the postconviction
court relied upon Mungin v. State, 36 Fla. L. Weekly S610 (Fla. Oct. 27,
2011), in which this Court reversed a summary denial of Brady and Giglio
claims and remanded for an evidentiary hearing.2
The Evidentiary Hearing
The postconviction court held the evidentiary hearing
on January 17, 2012. Waterhouse advised the court by telephone that he
chose to waive his personal appearance at the hearing. The testimony of
Leglio Sotolongo was presented by Waterhouse, and Detective Gary
Hitchcox was presented as a witness by the State. Waterhouse's
guilt-phase trial counsel did not testify during the evidentiary
hearing. Instead, the State and Waterhouse stipulated that trial counsel
would have testified consistent with affidavits filed with the court.
Sotolongo testified that in 1980, he was moonlighting
as a doorman at the ABC lounge in St. Petersburg. Detective Hitchcox
questioned Solotongo in reference to the homicide. While Sotolongo did
not recall Hitchcox showing him a photo of the victim, Sotolongo stated
that he would not dispute that this occurred if Hitchcox testified to
this fact. Sotolongo testified that it was his belief that he was
working at the ABC lounge on the night of the murder; however, when
shown Detective Hitchcox's report—which stated that Sotolongo was at the
bar, but not working that night—Sotolongo testified, “If I said it to
[Hitchcox] way back then, then that recollection, if true, is probably
more accurate than not.”
Although Sotolongo stated in his affidavit that he
remembers the night of January 2, 1980, because Waterhouse paid
Sotolongo money that he had previously borrowed, Sotolongo testified
during the evidentiary hearing that Waterhouse may have actually repaid
him the previous night. While Sotolongo was certain that he saw
Waterhouse leave the ABC lounge with two males that night, he had
difficulty specifying the time that this occurred, as evidenced by the
following exchange during cross-examination:
Q: Now, and you're fairly clear in your affidavit.
[Y]ou say you saw him leave the lounge. You can't be precise as to what
time he left?
A: That's correct.
Q: Okay. But it was before closing?
Q: That's pretty fair to say, correct? I mean, he was
going to have left before closing, right?
Q: Okay. But you don't know if that was 12:15, 12:30?
Q: Because if you were working, you would have been
there that late. But it's possible that you left early that night,
A: I didn't leave early that night, but it is
possible. You're right. I mean, that is almost counter-indication [sic].
Q: Well, I guess what I'm asking then, what time did
you leave that night?
A: I don't know exactly. If I was working, then I
left past 2:00.
Q: Okay. And if you weren't working, you could have
Q: 12:00, 1:00, 10:00, 11:00?
A: No. No. No.
Q: Okay. Well, let's talk some parameters here. What
time could you have—could you have left at midnight?
A: I remember him leaving that bar towards the end of
Q: Okay. You weren't working. So towards the end of
A: Well, sir, like I said, I believe that I was
working that evening.
A: But you indicate that I stated that I might not
A: ․ let me word it this way, towards the end of the
Q: But you can't say when that was.
Q: You can't tell if it's quarter to 12:00, quarter
after 12:00, 12:30, 1:00?
A: You are correct.
Q: And if you weren't working, is it possible that
you weren't there at the end of the evening? Let's just say that you saw
Mr. Waterhouse leave.
Q: Is it possible after he left you left but the bar
Q: —if you weren't working?
A: I was there the whole evening.
Q: From start to finish?
Q: You're sure.
A: I'm not positive.
Q: Okay. So I will ask you again.
Q: Is it possible now—
A: No. I understand. I understand. And believe me,
from the sound that I just made, I'm not being facetious. It is. It is a
long time ago, and you're correct. Forgive me.
Sotolongo also admitted that his memory was better
thirty-two years ago than it is now.
Sotolongo testified that from her position at the
bar, bartender Kyoe Ginn would not have been able to see the exit at
which Sotolongo was supposedly working that night, which was also the
exit through which Sotolongo observed Waterhouse leave. However,
Sotolongo acknowledged that there was a second exit to the lounge, and
it was possible that Ginn could see that other exit. Sotolongo also
conceded that if he was checking identifications at the exit referenced
in his affidavit, he would not have been able to see what was happening
in the lounge. Sotolongo stated that he knew bouncer Leon Vasquez, and
that Vasquez testified during trial that he had seen Waterhouse leave
the lounge with two men. When asked by the postconviction court why
Sotolongo did not seek out the defense attorneys during Waterhouse's
trial, Sotolongo replied, “I thought things would evolve the way they're
supposed to. Since I gave my statement to the detective, I thought that
my testimony probably wasn't needed, and that's why I wasn't called to
Detective Gary Hitchcox admitted that he did not have
an independent recollection of the interview with Sotolongo, and he was
testifying to what was provided in his 1980 report. However, Hitchcox
explained that, during his time with the police department, when he
conducted an interview, he would take notes on a notepad and then
dictate his report from those notes. According to the report, Sotolongo
told Hitchcox that he was at the ABC lounge on the night of the murder
from 10:00 p.m. until 1:00 a.m. Hitchcox denied that during the
interview Sotolongo ever stated he saw Waterhouse leave the bar with two
men and testified that Sotolongo's affidavit is false.3
Hitchcox testified that if Sotolongo had informed him of this fact
during the interview, he would have “[a]bsolutely” included it in his
On cross-examination, Hitchcox admitted that the
notes he took during the interview with Sotolongo no longer exist. When
asked if he would have omitted information from his report about
Sotolongo observing Waterhouse leave the lounge, Hitchcox replied:
[T]wo men leaving with the suspect would be very
important. We would want to pursue that. I would—that would be something
that I would get excited about as an investigator. [Sotolongo] told me
he didn't see [Waterhouse] leave, and there was nothing said about
leaving with two men. That would have been in the report.
When asked why he did not write a report about
bouncer Leon Vasquez, Hitchcox stated that he did not recall
interviewing Vasquez. When presented with his 1980 trial testimony
during which he testified that he interviewed Vasquez, Hitchcox stated:
[T]he only thing that I can tell you about that is I
testified to interviewing Vasquez. I would think that there would be a
police report indicating that I interviewed him with the same type of
setup: Me interviewing, where it happened, when I talked to him, what he
said. And I don't have that.
So my testimony at that trial had to be from my
knowledge back what, 32 years ago, of some type of documentation which
would be maybe a police report, something to that effect, and what I
testified to in court would have been my knowledge of either my report,
another report, a deposition, something to reflect my memory, or perhaps
just from memory.
When asked by the postconviction court whether other
officers were investigating the murder and taking statements from
witnesses, Hitchcox replied in the affirmative. On redirect, Hitchcox
testified that he would have been privy to any reports that other
detectives compiled about Vasquez.
After testimony concluded, but before closing
statements, the State argued that Waterhouse's postconviction counsel
had failed to demonstrate due diligence in discovering Sotolongo and,
therefore, the rule 3.851 motion was untimely. In making this assertion,
the State noted that Waterhouse's current counsel had represented
Waterhouse since 2003. According to the State, Waterhouse's current
counsel must “show that he did everything he could going through this
file, looked at all these witnesses, and could not find this witness.
He's not made that representation.” Counsel for Waterhouse responded as
[S]imilar to what the Defense attorney[sic] said in
their affidavit, that I in reading [Detective Hitchcox's report] would
sit there and read it and take it on face value that that's what
[Sotolongo's] statement said. And as a Defense attorney frankly—and I
think the Supreme Court recognizes this in Mungin, and what disturbed
them in Mungin was the fact that they felt officers of the Court,
attorneys, should be able to rely on police reports. And it would
disturb them that attorneys are put in a position of relying on police
reports that aren't true.
And so I would have read that. I have read the
discovery in the case. I would have accepted it on face value just like
[defense counsel] did. So that's the answer.
During closing statements, counsel for Waterhouse
abandoned the Giglio claim.
Order Denying Successive Postconviction Relief
On January 20, 2012, the postconviction court entered
an order denying relief on Waterhouse's second claim. First, the
postconviction court found that Waterhouse had satisfied the first prong
of the standard for newly discovered evidence, concluding that
Waterhouse had established that Sotolongo's testimony was unknown by
Waterhouse, his counsel, or the circuit court at the time of trial and
could not have been discovered by due diligence.4
The postconviction court relied on Mungin in reaching this conclusion:
As alluded to by the Court in Mungin, it is difficult
to discern how counsel would have known of the substance of Sotolongo's
testimony, as stated in the January 9, 2012 affidavit, if they had
relied upon the truthfulness of Hitchcox's police report. Mungin further
leads this [c]ourt to conclude that due diligence surely does not
require that counsel allocate limited pre-trial resources in
investigating a witness that is reported by police to have said
something contrary to what the witness now claims.
See Mungin, 36 Fla. L. Weekly at S613 (“We are
troubled by the possibility that a false police report was submitted and
then relied on by defense counsel.”).
However, the postconviction court further held that
Waterhouse had failed to establish the second prong of a claim for
relief based upon newly discovered evidence “because Sotolongo's
testimony is not of such a nature that it would probably produce an
acquittal on retrial in that it would not give rise to a reasonable
doubt as to Waterhouse's culpability.” In reaching this conclusion, the
postconviction court comprehensively detailed the facts that provided
both direct and circumstantial evidence of Waterhouse's guilt. In
addition to the facts detailed by this Court in Waterhouse I, see 429
So.2d at 302–04, the postconviction court discussed additional facts
from the trial court record:
1. Waterhouse informed police that nobody had used
his vehicle for at least two weeks prior to the murder.
2. During the January 9, 1980, interview with police,
in addition to stating that his life was over and that he was going to
the electric chair, Waterhouse also stated that “nothing will bring her
3. On January 10, 1980, Waterhouse discussed his
problems with alcohol and violence with the police, explaining that
“this problem would just come over him very quickly, like flipping a
switch.” Waterhouse advised the police that on the night of the murder
he consumed eight or nine beers before arriving at the ABC lounge and
four or five white russians while at the lounge. After admitting to this
heavy alcohol consumption, Waterhouse asked the police, “why do you
think I quit drinking since Wednesday night?”
4. During trial, bartender Kyoe Ginn testified that
after the night of the murder, Waterhouse only drank orange juice when
he came to the ABC lounge and left the lounge prior to closing.
5. During the January 10 interview, Waterhouse
admitted that he knew the victim for at least six months prior to the
murder, and that they had engaged in sexual intercourse on approximately
6. Robert Van Vuren, the foreman at Waterhouse's
place of employment, testified that, in addition to Waterhouse appearing
at work on the day after the murder with scratches on his face,
Waterhouse seemed to be wearing makeup on January 7, 1980, i.e., four
days after the murder, in an effort to cover the scratches. Van Vuren
also testified that he had previously seen a tire tool in Waterhouse's
7. Inmate Kenneth Young testified with regard to an
incident that occurred in the jail while Young's trial was pending.
According to Young, Waterhouse held a shank to the throat of another
inmate and ordered everyone else, except the captive inmate, out of the
room. Young testified that Waterhouse left the room a few minutes later
and stated, “I wonder how he'd like a Coke bottle up his ass like I gave
her.” The medical examiner testified during trial that the victim's
rectum was damaged consistent with a foreign object, such as a Coke
bottle, being inserted. The police found a Coke bottle inside
8. When Waterhouse learned that Van Vuren would be
called as a witness to testify that Waterhouse appeared at work on
January 3 with scratches on his face, Waterhouse told Inmate Young that
Van Vuren was incorrect. Waterhouse instead told Young that he was so
scratched up that he did not go to work at all that day.
9. Kenneth Norwood, who lived with Waterhouse at the
time of the murder, testified that on January 3, he saw Waterhouse
washing his car, and it appeared that he was cleaning the interior of
The postconviction court concluded that, in light of
the testimony and evidence presented during trial, “Sotolongo's
testimony would probably not produce an acquittal on retrial.” The
postconviction court further found that Sotolongo's testimony that he
saw Waterhouse leave the lounge with two men “was not reliable because
of the long passage of time, the fact that his memory when interviewed
by Hitchox was closer to the time of the event, and his memory at the
time of the January 12, 2012 evidentiary hearing was admittedly weaker.”
The postconviction court also noted that the testimony of Sotolongo was
cumulative to that of bouncer Leon Vasquez, which left open the time
frame that Waterhouse could have returned to the lounge later that
evening. Finally, the court noted that “Vasquez's testimony was contrary
to [bartender] Ginn's testimony and it was the jury's function to weigh
the credibility of these witnesses in accepting or rejecting the
testimony relied upon in reaching a verdict.”
With regard to the Brady claim, the postconviction
court held that Waterhouse was not entitled to relief. First, the court
found that Sotolongo's testimony would have impeached the testimony of
bartender Ginn, and corroborated the testimony of bouncer Vasquez,
thereby satisfying the first prong of Brady. However, the court
determined that this evidence had not been suppressed by the State and,
therefore, failed the second prong of a Brady claim. In reaching this
conclusion, the court found that Waterhouse failed to establish the
police report was, in fact, falsified:
[T]he description of Sotolongo's interview by
Hitchcox is more reliable since it was reduced to writing at the time of
the interview. Additionally, the passage of time and Sotolongo's weak
recollection militate against the reliability of Sotolongo's statements.
Finally, the postconviction court found that, even if
Waterhouse had met the second prong of Brady, Waterhouse failed to
demonstrate entitlement to relief because he could not establish
prejudice under the third prong of Brady due to the “other
uncontroverted evidence presented by the State, including Waterhouse's
own incriminating statements, and the physical and circumstantial
evidence against him.”
Waterhouse filed his Notice of Appeal on January 20,
2012. On January 23, the State filed a notice of cross-appeal,
challenging the postconviction court's determination that Waterhouse's
second claim was timely filed pursuant to rule 3.851(d)(2)(A).
Destruction of Evidence ClaimStandard of Review
In his first claim, Waterhouse appeals the summary
denial of his claim that his execution should be barred because he was
unable to obtain DNA testing of certain exhibits due to their premature
destruction by the Clerk's Office of the Sixth Judicial Circuit. We have
explained that “[t]he decision of whether to grant an evidentiary
hearing on a rule 3.851 motion is ultimately based on the written
materials before the court, and the ruling of the postconviction trial
court on that issue is tantamount to a pure question of law subject to
de novo review.” Troy v. State, 57 So.3d 828, 834 (Fla.2011) (quoting
Davis v. State, 26 So.3d 519, 526 (Fla.2009)).
Sufficiency of the Pleading
Under Florida Rule of Criminal Procedure 3.851(d)(1),
“[a]ny motion to vacate judgment of conviction and sentence of death
shall be filed by the prisoner within 1 year after the judgment and
sentence become final.” A claim is properly raised in a rule 3.851
motion beyond the time limits articulated in subdivision (d)(1) only
(A) the facts on which the claim is predicated were
unknown to the movant or the movant's attorney and could not have been
ascertained by the exercise of due diligence, or
(B) the fundamental constitutional right asserted was
not established within the period provided for in subdivision (d)(1) and
has been held to apply retroactively, or
(C) postconviction counsel, through neglect, failed
to file the motion.
Fla. R.Crim. P. 3.851(d)(2). As noted by the
postconviction court's summary denial order, Waterhouse's claim does not
satisfy any subdivision of rule 3.851(d)(2) and is, therefore,
improperly included in the present successive motion.6
First, Waterhouse has been aware of the destruction of evidence from his
case since at least October 15, 2003, when the State announced in its
response to Waterhouse's Rule 3.853 Motion for Postconviction DNA
Testing that the evidence at issue had been erroneously destroyed.
Second, Waterhouse himself acknowledges that he is not seeking relief
under an existing fundamental right, but instead “seeks the recognition
of a fundamental constitutional right for the first time.” Waterhouse
does not rely upon a single case in which such a right has previously
been recognized. Accordingly, the destruction of evidence claim raised
by Waterhouse is not properly pled in a successive rule 3.851 motion,
and the postconviction court properly denied Waterhouse's first claim on
Further, we agree with the postconviction court that
this claim is also procedurally barred, successive, and untimely. A
prior challenge to the destruction of DNA evidence in this case was
thoroughly litigated and resolved against Waterhouse.
On September 30, 2003, Waterhouse filed a rule 3.853
motion for postconviction DNA testing. In the motion, Waterhouse listed
the following evidentiary items to be tested for DNA:
alleged areas of blood found in [Waterhouse's] motor
vehicle, alleged areas of blood on [Waterhouse's] clothing, serology
evidence recovered from the victim at the autopsy, the clothing of the
victim, and hair evidence.
Waterhouse asserted that the State utilized the
evidence he listed for testing to support its claim that Waterhouse
raped and killed the victim. Waterhouse explained that DNA testing would
either exonerate him of the crime or mitigate his sentence as follows:
The Defendant is innocent. The DNA testing requested
by this motion will exonerate the Defendant of the crimes for which he
was sentenced. The State's case was based largely on circumstantial
evidence. A major component of the State's circumstantial evidence was
the above-described Exhibits and the testimony related thereto. Without
this evidence the Defendant would have been exonerated. DNA testing of
these items would negate the evidentiary value of these items for the
State, and would establish affirmative evidence that the Defendant is
innocent. The results of the DNA testing of this physical evidence would
be admissible at trial. The nature of this evidence is such that there
is no question that the evidence containing the tested DNA is authentic
and would be admissible at a future hearing.
On October 15, 2003, the State responded that “the
exhibits that Defendant Waterhouse wishes to test are no longer in the
possession of the Clerk of Court, having been destroyed in 1988.” The
State described how the evidence was prematurely destroyed:
As best the State can reconstruct the events, the
Clerk of Court submitted an order to Judge Robert Beach in 1983 that
authorized destruction of evidence held by the Clerk for a large number
of criminal cases. The cases were identified in [sic] by case number in
an appended list of approximately forty pages. The actual order signed
by Judge Beach did not refer to case number 80–192 and did not authorize
destruction of the evidence introduced in the Waterhouse case.
Destruction of evidence on the list apparently began in 1986 and
continued through at least 1988. The Clerk's office employees handling
the destruction apparently worked from an earlier list or draft of the
order which differed from the final version and which included the
Waterhouse case number even though it was a death penalty case and had
still been pending appeal at the time of Judge Beach's order. As a
result the Clerk's office erroneously destroyed the Waterhouse evidence
The State Attorney for the Sixth Judicial Circuit added that he was
“confident that the State Attorney's Office would never have concurred
with the destruction of evidence in any capital case.” Since the
evidence that Waterhouse sought to be tested had been destroyed, the
State requested that the postconviction court deny the motion for
postconviction DNA testing.
On May 5, 2004, Sixth Judicial Circuit Court Judge R.
Timothy Peters ordered that an evidentiary hearing be held to determine
the circumstances surrounding the destruction of the evidence. In this
order, Judge Peters stated that Waterhouse's rule 3.853 motion
“appear[ed] to be facially sufficient.” In response to a request by the
State that Judge Beach—the judge who presided over Waterhouse's trial
and prior postconviction proceedings—preside over the evidentiary
hearing, the order entered by Judge Peters provided:
[T]his court is concerned that, given the arguments
presented, Judge Beach may be a witness with respect to the facts and
circumstances of the destruction of the evidence. At the least, Judge
Beach should be available to either the State or the defense should they
choose to call him as a witness. Therefore, Judge R. Timothy Peters ․
shall preside over this hearing.
After the evidentiary hearing, Judge Peters entered
an order on April 19, 2005, finding that the destruction of the DNA in
Waterhouse's case was “inadvertent and not done in bad faith.”
Thereafter, Waterhouse filed an Amended Motion for Post–Conviction DNA
Testing. He requested a new trial, contending that the destruction of
the biological evidence was a constitutional due process violation and
also a violation of the prohibition against cruel and unusual
On June 2, 2005, Judge Beach—who at some point was
reassigned to the rule 3.853 proceedings—entered an order denying
Waterhouse's amended motion. Judge Beach first found that, because the
destruction of the evidence in Waterhouse's case was inadvertent and not
in bad faith, Waterhouse could not establish a due process violation
under the decision of the United States Supreme Court in Arizona v.
Youngblood, 488 U.S. 51, 58 (1988) (“[U]nless a criminal defendant can
show bad faith on the part of the police, failure to preserve
potentially useful evidence does not constitute a denial of due process
of law.”). Judge Beach next elected to revisit Judge Peters' finding of
the “apparent” sufficiency of Waterhouse's rule 3.853 motion. Judge
Beach found that Waterhouse's motion was insufficient on its face:
In both motions, the Defendant states that he is
innocent and that the DNA testing will exonerate him. Further, he
alleges that without the “evidence the Defendant would have been
exonerated.” He further alleges that DNA testing would “negate the
evidentiary value of these items for the State, and would establish
affirmative evidence that the Defendant is innocent.” ․
The Defendant fails to allege how this exoneration
will come about, or specifically what the DNA testing evidence will
show. In order for the trial court to make the required findings, the
movant must demonstrate the nexus between the potential results of DNA
testing on each piece of evidence and the issues in the case. Waterhouse
has failed to demonstrate or even allege such a nexus.
Judge Beach relied upon this Court's decision in
Hitchcock v. State, 866 So.2d 23 (Fla.2004), in which this Court
affirmed the denial of a rule 3.853 motion for postconviction DNA
testing where the defendant failed to “explain, with reference to
specific facts about the crime and the items he wished to have tested,
‘how the DNA testing requested by the motion will exonerate the movant
of the crime for which the movant was sentenced, or ․ will mitigate the
sentence received by the movant for that crime.’ “ Id. at 28.
The denial order next noted that under rule 3.853,
relief is warranted only where there is a reasonable probability that
the movant would have been acquitted or would have received a lesser
sentence if the DNA evidence had been admitted at trial. Relying upon
the facts of this Court's decision in Waterhouse I, the order concluded
that “even if the possible DNA evidence were not considered, there is
still sufficient evidence to support Defendant's conviction.” That
postconviction court noted that “the things done to the victim match
those for which the Defendant admitted a proclivity: violence, slapping,
hitting, rage when finding a woman is menstruating, and anal
intercourse.” That postconviction court also found that Waterhouse's
denial, and then subsequent admission, of knowing the victim were
indicative of guilt, as were the facts that Waterhouse was seen leaving
the lounge with the victim and that Waterhouse had “scratches on his
face the day after her violent rape and murder.” The postconviction
court at that time found that although the evidence was circumstantial,
“in the context of the trial, and based on the demeanor of the
witnesses, it is sufficient to support a conviction.”
Finally, to the extent that Waterhouse claimed that
the blood splattered around his car did not belong to the victim, the
former postconviction court concluded that even if DNA testing had
proved the assertion, “this would not exonerate Defendant.”
On appeal, Waterhouse claimed that “[t]he trial court
erred in denying [Waterhouse's] request for relief ․ where the
destruction of biological evidence violated the due process rights of
Mr. Waterhouse under both the United States Constitution and the Florida
Constitution.” In his initial brief, Waterhouse not only contended that
this Court should adopt an exception to the “bad faith” requirement in
Youngblood, but also asserted that heightened safeguards should be
applicable to capital proceedings. This Court ultimately issued an order
that affirmed the former postconviction court's denial of Waterhouse's
rule 3.853 motion for DNA testing. See Waterhouse v. State, No.
SC05–1404 (Fla. Oct. 13, 2006) (unpublished order) (942 So.2d 414). The
order relied upon our prior decision in Hitchcock.
While the reference to Hitchcock indicates that the
former postconviction court's denial was affirmed solely on the basis of
facial insufficiency, we have comprehensively reviewed the file in the
rule 3.853 appeal filed by Waterhouse. Our review demonstrates that
Waterhouse's due process challenge to the destruction of evidence in his
case was previously fully presented, considered, and rejected by both
the former postconviction court and this Court. Accordingly,
Waterhouse's current claim is both procedurally barred and successive.
See generally Hunter v. State, 29 So.3d 256, 267 (Fla.2008) ( “Claims
raised in prior postconviction proceedings cannot be relitigated in a
subsequent postconviction motion unless the movant can demonstrate that
the grounds for relief were not known and could not have been known at
the time of the earlier proceeding.”).
Further, as previously noted, in his prior rule 3.853
proceeding, Waterhouse asserted constitutional due process and Eighth
Amendment challenges to the destruction of evidence in his capital case.
There is no reason that he could not have asked the postconviction court
at that time and in that proceeding to recognize a bar to execution on
Therefore, to the extent Waterhouse is attempting to simply argue a
variant of this earlier claim in the instant proceeding, it is also
untimely. See Peterka v. State, No. SC08–1413, order at 2, 15 So.3d 581
(Fla. May 22, 2009) (unpublished order) (denying successive rule 3.851
motion as untimely where the defendant raised “a variant on a claim that
he has already raised in prior proceedings by relying upon evidence that
has been known since his trial”).
In light of the foregoing, we affirm the
postconviction court's summary denial of Waterhouse's destruction of
The Sotolongo Affidavit Claim
Newly Discovered Evidence
To obtain relief on the basis of newly discovered
evidence, a defendant is required to demonstrate that “(1) the asserted
evidence [was] unknown by the trial court, by the party, or by counsel
at the time of trial, and it must appear that the defendant or defense
counsel could not have known of it by the use of diligence; and (2) the
newly discovered evidence must be of such a nature that it would
probably produce an acquittal on retrial.” Wyatt v. State, 71 So.3d 86,
99 (Fla.2011) (citing Jones v. State, 709 So.2d 512, 521 (Fla.1998)).
Newly discovered evidence satisfies the second prong of the test
articulated in Jones, and reaffirmed in Wyatt, if it “weakens the case
against [the defendant] so as to give rise to a reasonable doubt as to
his culpability.” Jones, 709 So.2d at 526 (quoting Jones v. State, 678
So.2d 309, 315 (Fla.1996)). We discussed the parameters for evaluating
the prejudice prong of a newly discovered evidence claim in Marek v.
State, 14 So.3d 985 (Fla.2009), as follows:
In determining whether the evidence compels a new
trial, the postconviction court must “consider all newly discovered
evidence which would be admissible” and must “evaluate the weight of
both the newly discovered evidence and the evidence which was introduced
at the trial.” [Jones v. State, 591 So.2d 911, 916 (Fla.1991).] This
whether the evidence goes to the merits of the case
or whether it constitutes impeachment evidence. The trial court should
also determine whether this evidence is cumulative to other evidence in
the case. The trial court should further consider the materiality and
relevance of the evidence and any inconsistencies in the newly
Marek, 14 So.3d at 990 (quoting Jones, 709 So.2d at
This Court has explained that “[w]hen the trial court
rules on a newly discovered evidence claim after an evidentiary hearing,
we accept the trial court's findings on questions of fact, the
credibility of witnesses, and the weight of the evidence if based upon
competent, substantial evidence.” Hitchcock v. State, 991 So.2d 337, 349
In the instant proceeding, the State challenges the
postconviction court's determination that Waterhouse satisfied the due
diligence prong of a newly discovered evidence claim and, therefore, his
second claim is untimely for purposes of rule 3.851(d)(2)(A).
Conversely, Waterhouse agrees with the postconviction court's
determination that due diligence was established, but challenges the
court's holding that the information provided by Sotolongo was not of
such a nature that it would probably produce an acquittal on retrial. We
address each of these challenges.
The postconviction court first found that Waterhouse
had established that neither he, his counsel, nor the trial court could
have known of the evidence provided in Sotolongo's affidavit because
Detective Hitchcox's report stated that Sotolongo “does not remember
when [Waterhouse] left or when the vic[tim] left as this is not the type
of thing he keeps track of.” The postconviction court here relied on
this Court's decision in Mungin v. State, 36 Fla. L. Weekly S610, S613
(Fla. Oct. 27, 2011), for the conclusion that “due diligence surely does
not require that counsel allocate limited pre-trial resources in
investigating a witness that is reported by police to have said
something contrary to what the witness now claims.”
In Mungin, a capital defendant filed a successive
motion for postconviction relief, contending that a newly discovered
witness impeached the testimony of a State witness (Ronald Kirkland)
who, during trial, “identified Mungin as leaving the crime scene
immediately after the murder.” Id. at S610. The newly discovered
witness, George Brown, testified that he, not Kirkland, was the first
person on scene after the murder, and that the homicide report prepared
after the murder was “false.” See id. Mungin also offered an affidavit
from his trial counsel explaining why counsel did not discover this
5. Prior to trial, the State provided me with a copy
of Detective Gilbreath's homicide report, in which there is brief
mention made of George Brown and the information he supposedly told
Detective Conn when he was interviewed on the day Ms. Woods was shot. I
relied on this police report as being an accurate and truthful account
of what Mr. Brown told the police. The version of Mr. Brown's statement
contained in the homicide report generally supported the version of
facts provided by Mr. Kirkland, and provided no suggestion that Mr.
Brown had information that would be useful to impeach Mr. Kirkland's
version of the events.
7. [sic] Because the information contained in the
police report appeared to be of much less importance than the
information provided by Kirkland, and due to the fact that Kirkland
became the chief prosecution identification witness, our efforts focused
on attempting to undermine Kirkland's testimony at trial. Because I
relied on the veracity of the police report, apparently no one from the
defense team contacted or spoke with Mr. Brown prior to trial.
8. ․ Had the State provided me with an accurate
report containing the true version of events that Mr. Brown witnessed,
this would have made a tremendous difference in terms of the
presentation of Mr. Mungin's case. Every effort would have been made to
interview Mr. Brown and to present his conflicting testimony, given that
it contradicts and impeaches Kirkland's version of events and his
identification of Anthony Mungin.
Id. at S611–12 (emphasis supplied). Mungin asserted
that the newly discovered evidence from Brown demonstrated that the
State violated both Brady and Giglio. See id. at S610. The
postconviction court there denied Mungin's motion without an evidentiary
hearing, concluding that Mungin had failed to establish prejudice. See
id. at S612. On appeal, this Court reversed and remanded for an
evidentiary hearing with regard to Brown's claim that the police report
was false. See id. at S613–14.10
Relevant to the instant proceeding, we stated that we were “troubled by
the possibility that a false police report was submitted and then relied
on by defense counsel.” Id. at S613 (emphasis supplied).
The State contends on cross-appeal that the fact that
Leglio Sotolongo's name was mentioned in the police report placed
collateral counsel on notice that Sotolongo was a potential witness—even
though the police report stated that Sotolongo did not know when
Waterhouse or the victim left the ABC lounge. It is undisputed that
Waterhouse's trial counsel, and all subsequent counsel, possessed the
January 7, 1980, report prepared by Detective Hitchcox which mentioned
Sotolongo. The State contends that Waterhouse has failed to carry his
burden to demonstrate why, after more than thirty years, neither he nor
his counsel could have not easily discovered the witness now being
In Mungin, we expressed concern with the fact that
defense counsel may have relied upon a false report. See id. at S613. In
Mungin, we did not state that defense counsel, or collateral counsel,
upon receiving a police report, must presume that the report is false
and thereafter independently verify every detail of the report or every
statement made by a witness to the police. To place the onus of
verifying every aspect of an unambiguous police report on defense or
collateral counsel would not only create a substantial amount of work in
a capital case, but also could be viewed as downplaying the seriousness
of allegedly false police reports. Moreover, to hold that collateral
counsel must investigate every aspect of a police report—even where it
appears that such investigation would be fruitless—is inconsistent with
a prior case where we held, in the context of an alleged Brady
violation, that due diligence by trial counsel was satisfied even though
the witness who provided the impeaching evidence had been named in a
police document that was provided to defense counsel.
In a similar manner, in State v. Huggins, 788 So.2d
238, 243 (Fla.2001), during discovery, defense counsel was provided with
hundreds of “lead sheets” from the police, including one regarding a
potential witness named Ausley. However, the information provided in
that lead sheet was inaccurate and did not provide defense counsel with
any indication that Ausley had information that was useful to the
defense. See id. For this reason, defense counsel did not interview
Ausley. See id. Prior to trial, Ausley gave a second statement to the
prosecution which accurately depicted the information that he possessed.
See id. at 241–42. The prosecutor concluded that this information “did
not support what he believed the defense's theory of the case would be”
and did not reveal this information to the defense. Id. at 242. After
the defendant was convicted of murder, Ausley approached defense counsel
and informed them of the exculpatory information that he possessed. See
id. at 242.
In evaluating the Brady claim in that case, the trial
court found that the defendant could not have possessed the suppressed
information with the use of due diligence. See id. at 243. On appeal,
this Court affirmed these findings, holding that there was competent,
substantial evidence to support the lower tribunal's determination that
the State had suppressed favorable evidence which was unavailable to the
defendant. See id. We reached this conclusion despite the State's
assertion that the information was not suppressed because the State had
“disclosed lead sheet 302 and if defense counsel had interviewed Ausley
prior to the trial, they would have learned the substance of Ausley's
tape-recorded statement .” Id. Relevant to this case, in Huggins, this
Court noted that defense counsel only became aware of Ausley's evidence
when Ausley contacted the defense. See id. at 242. Thus, defense counsel
in Huggins was not required to investigate hundreds of leads provided by
the police—including leads which “did not reveal that further
investigation would produce useful results”—in order to satisfy due
diligence. Id. at 243.
The issue presented by the State's cross-appeal is
whether the analysis applicable to defense counsel in Huggins should
apply to collateral counsel. Essentially, we must determine whether
collateral counsel should be held to a different, higher standard of
investigation than original trial counsel. Having considered the
assertions of the State and Waterhouse, we conclude that collateral
counsel should not be held to a higher standard. While pretrial
resources are unquestionably limited, collateral counsel's resources are
also not unlimited. Thus, requiring collateral counsel to verify every
detail and contact every witness in a police report—even where the
police report indicates that the witness has no useful information—would
place an equally onerous burden on collateral counsel, with little
chance of discovering helpful or useful information.11
In light of the foregoing, we hold that the “due
diligence” prong of a newly discovered evidence claim is satisfied when:
1. A witness swears in an affidavit that he or she
spoke with the police about the crime, but the information ultimately
included in the police report is either inaccurate or false; and
2. The defendant's counsel swears that he or she
relied upon the veracity of that police report and did not contact that
witness because the report indicated that the witness would not have any
pertinent information about the crime.
Here, the police report by Detective Hitchcox
indicated that Sotolongo did not possess any information that was
favorable to the defense. Neither trial counsel nor collateral counsel
interviewed Sotolongo because they relied upon the veracity of this
report. In light of these facts and the decision in Huggins, we conclude
that Waterhouse has established the due diligence prong of his newly
discovered evidence claim. We further conclude that Waterhouse's second
claim is properly raised under rule 3.851(d)(2)(A). Accordingly, we
reject the State's cross-appeal.
Likelihood of an Acquittal on Retrial
Although Waterhouse may have satisfied the first
prong of a newly discovered evidence claim, Waterhouse cannot
demonstrate that Sotolongo's testimony is of such a nature that it
probably would produce an acquittal on retrial. See Wyatt, 71 So.3d at
99. First, the postconviction court found that, due to the passage of
time, Sotolongo's testimony during the evidentiary hearing was not
reliable. This Court must accept the postconviction court's
determination with regard to the credibility of Sotolongo as a witness,
provided that the determination is based upon competent, substantial
evidence. See Hitchcock, 991 So.2d at 349.
The transcript of the evidentiary hearing reveals
that Sotolongo was uncertain during much of his testimony. For example,
in his affidavit, Sotolongo states that Waterhouse repaid him on the
night of the murder, but in cross-examination during the evidentiary
hearing, he said that he could not be absolutely certain that Waterhouse
repaid him on that night. Sotolongo also could not remember if he was
working on the night of the murder. Sotolongo admitted that his memory
was better thirty-two years ago than it is now, and that the events in
question occurred “a long time ago.” Finally, Sotolongo testified that
the statements in his affidavit are true “as far as [he] can recall.”
Given Sotolongo's equivocal responses during the evidentiary hearing,
and the sheer passage of time since the relevant events occurred, we
conclude that competent, substantial evidence supports the
postconviction court's finding that Sotolongo's testimony was not
Second, we agree with the postconviction court that
Sotolongo's testimony is not “of such a nature that it would probably
produce an acquittal on retrial.” Wyatt, 71 So.3d at 99. The
postconviction court's January 20, 2012, denial order comprehensively
details the significant evidence presented during the 1980 trial that
supports Waterhouse's guilt of the murder.12
It is true that Sotolongo's statement would have corroborated the
testimony of bouncer Leon Vasquez, who testified during trial that he
saw Waterhouse leave the bar with two men, and arguably impeached the
testimony of bartender Ginn, who testified that she saw the victim leave
with Waterhouse. However, in light of the other compelling evidence of
Waterhouse's guilt, the fact that a second person saw Waterhouse leave
the bar with two men would be insufficient to produce an acquittal on
Moreover, although the denial order provides that
“Vasquez's testimony was contrary to Ginn's testimony and it was the
jury's function to weigh the credibility of these witnesses in accepting
or rejecting the testimony relied upon in reaching a verdict,” it is
arguable whether the testimony of these two individuals is, in fact,
inconsistent. A review of the trial record from Waterhouse's guilt phase
produces a timeline of events on the night of the murder based upon the
testimony with regard to approximate times presented by both Ginn and
Vasquez. In this timeline, the testimony can be interpreted to be
consistent with Waterhouse being seen by both Vasquez and Sotolongo
departing the ABC lounge with two men, with a time in the record being
approximately 11:50 p.m., to complete a drug purchase. During trial,
Vasquez testified that after leaving with two men for approximately
forty-five minutes, Waterhouse was observed returning to the parking lot
of the ABC lounge. Vasquez stated that the man who sold Waterhouse the
drugs exited the car and re-entered the lounge. Thus, the evidence is
uncontroverted that after Waterhouse departed from the ABC lounge with
the two males, he returned to the lounge parking lot later that same
night. Waterhouse was in the vicinity of the ABC lounge parking lot at
approximately 12:30 a.m., and he re-entered the lounge, although unseen
by Vasquez (as there was more than one entrance to the lounge), because
he was actually observed by bartender Ginn inside the lounge drinking
with the victim before they departed together at approximately 1:00 a.m.
Vasquez testified that he also saw the victim in the lounge after 1:00
a.m., but he did not know if she left with Waterhouse because he did not
see the victim leave the bar.
In light of the foregoing, we conclude that even if
Sotolongo had told Detective Hitchcox that he saw Waterhouse leave the
ABC lounge with two men on January 2, 1980, this testimony would add
nothing to that which was already presented during trial. Vasquez
already presented these facts, and actually set forth a more precise
timeline than Sotolongo. Not only did Vasquez testify that he saw
Waterhouse leave the lounge with two males at 11:50 p.m., he also
observed Waterhouse in the parking lot of the lounge around 12:30 a.m.
Because Sotolongo did not see the victim leave the ABC lounge, his
testimony during the evidentiary hearing does not undermine an analysis
that Waterhouse returned to the lounge after his initial departure, and
then later left with the victim.
Waterhouse has failed to establish that Sotolongo's
testimony is of such a nature that it would probably produce an
acquittal on retrial. See Wyatt, 71 So.3d at 99. Accordingly, we affirm
the postconviction court's denial of relief based upon Waterhouse's
claim of newly discovered evidence.
Waterhouse next claims that the State violated Brady
by failing to disclose Sotolongo's testimony to defense counsel. A Brady
violation occurs when “(1) ․ favorable evidence, either exculpatory or
impeaching, (2) was willfully or inadvertently suppressed by the State,
and (3) because the evidence was material, the defendant was
prejudiced.” Taylor v. State, 62 So.3d 1101, 1114 (Fla.2011). This Court
has expressed the standard of review of a Brady claim denial as follows:
Brady claims present mixed questions of law and fact.
See Sochor v. State, 883 So.2d 766, 785 (Fla.2004). Thus, as to findings
of fact, we will defer to the lower court's findings if they are
supported by competent, substantial evidence. See id. “[T]his Court will
not substitute its judgment for that of the trial court on questions of
fact, likewise of the credibility of the witnesses as well as the weight
to be given to the evidence by the trial court.” Hurst [v. State, 18
So.3d 975, 988 (Fla.2009) ] (quoting Lowe v. State, 2 So.3d 21, 30
(Fla.2008)). We review the trial court's application of the law to the
facts de novo.
Franqui v. State, 59 So.3d 82, 102 (Fla.2011).
In rejecting this claim, the postconviction court
noted that it was faced with the conflicting testimonies of Sotolongo
and Detective Hitchcox. The court ultimately found Detective Hitchcox's
testimony with regard to the interview to be more reliable than that of
Sotolongo because “it was reduced to writing” at the time of the 1980
interview. Further, the court found that the passage of time and
Sotolongo's “weak recollection militate against the reliability of [his]
statements.” Because the postconviction court concluded that Hitchcox's
depiction of the interview was accurate, it held that no favorable
evidence was suppressed by the State.
Waterhouse has not established that a Brady violation
occurred. As with the newly discovered evidence claim, the
postconviction court heard the testimony of Sotolongo, and concluded
that Detective Hitchcox's testimony with regard to the 1980 interview
was more reliable. Given the passage of time and Sotolongo's admission
that his memory of the interview was better thirty-two years ago than it
was on January 17, 2012, we conclude that the postconviction court's
finding is supported by competent, substantial evidence. See Franqui, 59
So.3d at 102 (stating that this Court will not substitute its judgment
for that of the postconviction court on issues of witness credibility).
Thus, if the interview occurred as reflected in the report, and as
testified to by Detective Hitchcox, then the State did not suppress
impeaching evidence because the report was not false.
Moreover, even if this Court were to reject the
postconviction court's determination of witness credibility, and
conclude that the State suppressed impeaching evidence because Detective
Hitchcox's report is false (which we do not), Waterhouse's claim would
nonetheless fail because he cannot establish prejudice under Brady . In
Brady v. Maryland, the United States Supreme Court held that the
suppression of evidence favorable to an accused violates due process
where the evidence is material either to guilt or to punishment. See 373
U.S. at 87. The Supreme Court has explained that to establish prejudice
under the materiality prong of Brady, a defendant must demonstrate
“a reasonable probability” that the result of the
trial would have been different if the suppressed documents had been
disclosed to the defense. As we stressed in Kyles[v. Whitley, 514 U.S.
419, 434, (1995) ]: “[T]he adjective is important. The question is not
whether the defendant would more likely than not have received a
different verdict with the evidence, but whether in its absence he
received a fair trial, understood as a trial resulting in a verdict
worthy of confidence.” 514 U.S. at 434.
․ [T]he materiality inquiry is not just a matter of
determining whether, after discounting the inculpatory evidence in light
of the undisclosed evidence, the remaining evidence is sufficient to
support the jury's conclusions. Id. at 434–435. Rather, the question is
whether “the favorable evidence could reasonably be taken to put the
whole case in such a different light as to undermine confidence in the
verdict.” Id. at 435.
Strickler v. Greene, 527 U.S. 263, 289–90 (1999); see
also Rodriguez v. State, 39 So.3d 275, 288 (Fla.2010) (holding that
defendant “failed to show prejudice—i.e., that ‘the favorable evidence
could reasonably be taken to put the whole case in such a different
light as to undermine confidence in the verdict.’ “ (quoting Strickler,
527 U.S. at 290)).
First, as previously discussed in the analysis of the
newly discovered evidence claim, the testimony of Sotolongo, Vasquez,
and Ginn are not necessarily inconsistent and can be reconciled.
Sotolongo's testimony is not, therefore, actually impeaching. Second,
even if Sotolongo's testimony could be viewed as impeaching, in light of
Waterhouse's incriminating statements and the other evidence of his
guilt, this cumulative testimony cannot “reasonably be taken to put the
whole case in such a different light as to undermine confidence in the
verdict.” Strickler, 527 U.S. at 290 (quoting Kyles, 514 U.S. at 435);
see Rodriguez, 39 So.3d at 288. Accordingly, Sotolongo's testimony fails
the materiality and prejudice prong of Brady, and we conclude that the
claim presented by Waterhouse is without merit.
In accordance with our analysis above, we affirm the
circuit court's denial of postconviction relief. Further, we reject the
State's cross-appeal and affirm the determination of the postconviction
court that Waterhouse's second claim satisfied the due diligence
component of Florida Rule of Criminal Procedure 3.851(d)(2)(A). No
motion for rehearing will be entertained by this Court. The mandate
shall issue immediately. Waterhouse's request for a stay of execution is
It is so ordered.
43.195, Florida Statutes (1987), provided: “The clerk of any circuit
court or county court may dispose of items of physical evidence which
have been held as exhibits in excess of 10 years in cases on which no
appeal is pending or can be made.” In 1989, the statute was amended to
allow for destruction of such evidence after three years. See ch.
89–176, § 2, Laws of Fla. In 2003, this statute was renumbered as
section 28.213. See ch.2003–402, § 26, Laws of Fla.
2. In Mungin,
a witness came forward and asserted that “he was the first person on the
scene after the murder and that no other person was present in the
store. He states that he told this to police the night of the murder and
that the police report is false .” Id. at S610 (emphasis supplied).
3. He also
denied the alleged altercation at Murphy's Bar, stating that it “[n]ever
postconviction court also found that Waterhouse's second claim was
properly pled under rule 3.851.
According to Waterhouse I, “[t]he victim's wounds were such that they
were probably made with a hard instrument such as a steel tire changing
tool.” 429 So.2d at 303.
party disputes that this claim was not filed pursuant to subdivision
to Waterhouse's assertion in his successive postconviction motion, “all”
of the evidence from trial was not destroyed. For example, fingernail
clippings from the victim were preserved. However, DNA testing on the
clippings from one hand failed to disclose any pertinent facts, and
testing on the clippings from the other hand only indicated female DNA.
However, all of the exhibits listed by Waterhouse in his motion for
postconviction DNA testing had been destroyed.
8. On June 3,
2004, the State filed a petition with this Court seeking review of Judge
Peters' non-final order. See State v. Waterhouse, No. SC04–956 (Fla.
petition filed June 3, 2004). The State requested that the Court reverse
the order mandating an evidentiary hearing on the circumstances
surrounding the destruction of the evidence and finding the motion for
DNA testing to be facially sufficient. On November 3, 2004, this Court
dismissed the State's petition without prejudice. See State v.
Waterhouse, 888 So.2d 623 (Fla.2004) (table decision).
presents no authority to support the proposition that such a challenge
is not ripe until a warrant is signed. Cf. Barnhill v. State, 971 So.2d
106, 118 (Fla.2007) (“Barnhill concedes that his claim involving
competency to be executed is not ripe for review as he has not yet been
found incompetent and a death warrant has not been signed.”).
we rejected a newly discovered evidence claim, holding that Mungin could
not demonstrate that the information provided by Brown was of such a
nature that it would probably produce an acquittal on retrial. See id.
cases in which a witness comes forward years after a defendant is
convicted of capital murder and contends that the police provided false
information in a document are not common, and should not be deemed the
norm in capital murder investigations. Instead, as asserted by
Waterhouse, attorneys and judges should be able to rely upon the
veracity of a police report.
to Waterhouse's assertion, the significance of the newly discovered
evidence is not to be considered in conjunction with evidence that might
be presented at a future, speculative retrial. Instead, as we noted in
Marek:In determining whether newly discovered evidence would probably
result in an acquittal or a lesser sentence, the new evidence must be
viewed in conjunction with the evidence presented at trial. Thus, the
Court evaluates all the admissible newly discovered evidence, including
any admissible newly discovered evidence presented in prior
postconviction proceedings, and compares it with the evidence that was
introduced at trial.14 So.3d at 990–91 (emphasis supplied).
PARIENTE, LEWIS, POLSTON, LABARGA, and PERRY, JJ.,
concur.CANADY, C.J., concurs in result with respect to the affirmance of
the trial court's order denying relief to Waterhouse, but dissents with
respect to the decision on the State's cross-appeal.QUINCE, J., recused.